A strong interest in First Amendment law and the emergence of the “Occupy” movement during his first year of Law School got Nick Brod ’14 thinking about the right to assemble. But a deep dive into constitutional doctrine pertaining to the First Amendment’s Assembly Clause left him convinced that it missed the mark – and that he had found a rich and under-explored area for legal scholarship. The result: a note, “Rethinking a Reinvigorated Right to Assemble,” published in the Duke Law Journal, that was selected by Scribes, the American Society of Legal Writers, as the best student-authored law-review article published this year.
“I was told by the screener who read Mr. Brod’s article that he knew while reading it that it would likely win, as it was the best article he had seen in the last several years serving as a screener for this competition,” said Mary Bowman, associate director of the Legal Writing Program and associate professor of lawyering skills at the Seattle University School of Law, who chairs Scribes’ Law-Review Competition Selection Committee. Brod’s article was one of 73 nominated by student journal editors that were then screened by members of the legal writing faculty at the Thomas Cooley School of Law, she said. “This year, the quality was so high that several screeners submitted two finalists, so the award committee reviewed 16 finalist articles and selected Mr. Brod’s as this year’s winner.”
Both Brod and DLJ, represented by Editor-in-Chief Chris Bryant ’14, received awards March 27 at the Scribes Dinner at the National Conference of Law Reviews held at Southwestern Law School in Los Angeles.
“It was totally surprising and very gratifying to know that people have read the note and really liked it,” said Brod, who also serves as an executive editor of DLJ.
Brod approached his subject noting a recent uptick in political movements that have relied on people gathering in public spaces to make their voices heard. “I particularly had Occupy in mind, but this applies, I think, across the political spectrum – to the Tea Party and other groups,” he said. “In this digital age, sometimes we forget that it isn’t just going on Facebook or Twitter, but actually gathering together in groups and engaging in demonstrations that makes political change happen.”
Yet lately, he said, the dominant view among scholars has been that the Assembly Clause should provide an alternative to the right of association, which deals primarily with the right of individuals to choose members of their own group.
In his article, Brod argues that speech and assembly are two different acts in spite of being treated by courts as one and the same in the course of First Amendment analysis. “I think primarily for that reason – and you saw this in a lot of the Occupy cases – we’ve had individuals who have tried to start these physical, in-person movements evicted from public spaces or prevented from fully expressing themselves,” he said. “I argue that courts are viewing such activity as speech, when it really is more appropriate to view it as assembly.”
Brod examines the text and history of the Assembly Clause in his note, demonstrating that when the Framers wrote it, they sought to protect in-person movements and gatherings in such places as streets and town squares. “They didn’t have in mind these sorts of associational rights that we started to talk about more recently,” he said.
Professor Joseph Blocher, who advised Brod on the note, said Brod is convincing in calling for the Assembly Clause to be applied only to gatherings – “political rallies rather than political parties.”
“The note skillfully shows how this interpretation of the Clause would better account for the protection (and appropriate regulation) of flesh-and-blood gatherings like the Occupy Wall Street movement, without unnecessarily importing the baggage of free association law,” said Blocher. “More important than this practical benefit, Nick shows how his reading is consistent with the plain meaning of the word ‘assemble’ in the First Amendment and in other provisions of the Constitution, where it clearly refers to temporal gatherings.” Blocher, whose constitutional scholarship includes First Amendment law as a focus, commended Brod for applying his careful textual and historical analysis to the “Age of Occupy.”
“He argues that the ‘occupiers’ have much in common with founding-era analogues, but that their assembly rights should also be subject to regulation,” he said. “Nick explicitly decides not to rely on well-worn, and often faulty, free speech doctrines, but rather to propose a new doctrinal framework for evaluating the constitutionality of such regulation.” It was a masterful treatment of an ambitious topic, Blocher said.
Brod, who following graduation will clerk for Judge Gerald Tjoflat ’57 of the U.S. Court of Appeals for the Eleventh Circuit and then for Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas, credited Blocher’s input with helping improve the note. “I could not have done this without his help,” he said. He also noted the contributions of his DLJ colleagues, who helped shepherd his article to publication.
“I’m always struck by how much better it got from having a bunch of my friends look at it and really interrogate the ideas,” he said. “It’s a group effort to pull something like this off and I benefited so much from their insights.”
Bryant helped select Brod’s note as DLJ’s submission to the Scribes competition. “Nick's note stood out because of its timeliness, the ease with which it read, and the contributions that it stands to make to Assembly Clause jurisprudence,” he said.
“The Duke Law Journal has made a commitment to support and publish high-quality student scholarship. This means that editors across volumes are heavily involved in the topic-selection, research, editing, and publication phases. Nick's engagement and enthusiasm at all stages of this process was superb, not just for his note, but for all of the notes that he has helped edit over the past year.”